Citation Nr: 0900604
Decision Date: 01/07/09 Archive Date: 01/14/09
DOCKET NO. 07-27 326 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a skin condition,
to include chloracne, on the back, stomach, neck, face, and
head, to include as a result of in-service exposure to Agent
Orange.
2. Entitlement to service connection for enlarged prostate
to include as a result of in-service exposure to Agent
Orange.
3. Entitlement to service connection for pain in the arms,
hands, and feet to include as a result of in-service exposure
to Agent Orange.
4. Entitlement to service connection for a dental disorder,
claimed as upper jaw and teeth moving, to include as a result
of in-service exposure to Agent Orange.
5. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
K.S. Hughes, Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to April
1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
The veteran requested and was scheduled to appear at a Travel
Board hearing in August 2008. However, he failed to report
for this hearing and provided no explanation for his absence.
His request for a Travel Board hearing, therefore, is deemed
withdrawn. See 38 C.F.R. § 20.704(d) (2008).
FINDINGS OF FACT
1. The veteran does not have a diagnosis of chloracne and
the preponderance of the evidence is against the finding that
the veteran has any other skin condition, to include
folliculitis, that occurred in service or is etiologically
related to his active service.
2. The veteran does not have a diagnosis of a prostate
condition.
3. The veteran does not have a diagnosed disorder manifested
by pain of the arms, hands, and feet.
4. The veteran does not have a diagnosis of a disorder of
the upper jaw or teeth.
5. The veteran's service-connected disability alone does not
preclude him from securing and following gainful employment.
CONCLUSIONS OF LAW
1. A skin condition, to include chloracne, was not incurred
in or aggravated by active service and it may not be so
presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2008).
2. A prostate disorder was not incurred in or aggravated by
active service and it may not be so presumed. 38 U.S.C.A.
§§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2008).
3. A disorder manifested by pain of the arms, hands, and
feet was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303
(2008).
4. A disorder of the upper jaw and teeth was not incurred in
or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107
(West 2002); 38 C.F.R. §§ 3.303 (2008).
5. The criteria for a TDIU due to service-connected
disability have not been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.340, 4.16, 4.18, 4.19 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance Requirements
As provided by the Veterans Claims Assistance Act of 2000
(VCAA), VA has duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a).
Review of the claims files reveals compliance with the VCAA,
38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). That is, by way of a letter dated
in January 2006, prior to the rating decision on appeal, the
RO advised the veteran of the evidence needed to substantiate
his claims and explained what evidence VA was obligated to
obtain or to assist him in obtaining and what information or
evidence he was responsible for providing. 38 U.S.C.A.
§ 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183
(2002). Moreover, since the Board has concluded that the
preponderance of the evidence is against the claims for
service connection and TDIU, any questions as to the
appropriate disability rating or effective date to be
assigned are rendered moot, and no further notice is needed.
See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Board also concludes that VA's duty to assist has been
satisfied.
The veteran's service and VA treatment records as well as
written communications from the veteran and his brother are
in the file. As there is no indication or allegation that
relevant evidence remains outstanding, the Board finds that
the duty to assist has been met. 38 U.S.C.A. § 5103A.
The Board acknowledges that, to date, VA has not provided the
veteran an examination or sought a medical opinion with
respect to the issues on appeal. However, as will be
discussed in detail below, in light of the uncontroverted
facts (which indicates that he is not unemployable due to his
single service connected disability of degenerative disc
disease of the lumbar spine, his symptoms have not been
diagnosed as chloracne, a dental disorder, or a disorder of
the prostate, arms, hands, or feet and he was not treated for
folliculitis until approximately 23 years after his
separation from service) the Board finds that an examination
is unnecessary to decide these claims. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A.
§ 5103A(d) and 38 C.F.R. § 3.159(c)(4).
Finally, it is noted that the Board has thoroughly reviewed
all the evidence in the veteran's claims folder. Although
the Board has an obligation to provide reasons and bases
supporting this decision, there is no need to discuss, in
detail, the evidence submitted by the veteran or on his
behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.
Cir. 2000) (the Board must review the entire record, but does
not have to discuss each piece of evidence). The analysis
below focuses on the most salient and relevant evidence and
on what this evidence shows, or fails to show, with respect
to each claim. The veteran must not assume that the Board
has overlooked pieces of evidence that are not explicitly
discussed herein. See Timberlake v. Gober, 14 Vet. App. 122
(2000) (the law requires only that the Board address its
reasons for rejecting evidence favorable to the veteran).
Service Connection
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110 (West 2002). That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b) (2008). Service connection may also be
granted for any injury or disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d) (2008).
Certain diseases may be presumed to have been incurred in
service when manifested to a compensable degree within one
year of discharge from active duty. 38 U.S.C.A. § 1112 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2008).
Diseases associated with exposure to certain herbicide agents
used in support of military operations in the Republic of
Vietnam during the Vietnam era will be considered to have
been incurred in service. 38 U.S.C.A. § 1116(a)(1);
38 C.F.R. § 3.307(a)(6). The presumption requires exposure
to an herbicide agent and manifestation of the disease to a
degree of 10 percent or more within the time period specified
for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore,
even if a veteran does not have a disease listed at 38 C.F.R.
§ 3.309(e), he or she is presumed to have been exposed to
herbicides if he or she served in Vietnam between January 9,
1962, and May 7, 1975, unless there is affirmative evidence
to establish that the veteran was not exposed to any such
agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R.
§ 3.307(a)(6)(iii). "Service in the Republic of Vietnam"
includes service in the waters offshore and service in other
locations if the conditions of service involved duty or
visitation in the Republic of Vietnam. 38 C.F.R.
§ 3.307(a)(6)(iii).
The diseases alluded to above include chloracne or other
acneform diseases consistent with chloracne, Type 2 diabetes
(also known as Type II diabetes mellitus or adult-onset
diabetes), Hodgkin's disease, chronic lymphocytic leukemia,
multiple myeloma, non-Hodgkin's lymphoma, acute and subacute
peripheral neuropathy, porphyria cutanea tarda, prostate
cancer, respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea), and soft-tissue sarcomas (other than
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma). 38 C.F.R. § 3.309(e) (2008).
Notwithstanding the foregoing presumptive provisions, the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a claimant is not precluded
from establishing service connection for a disease averred to
be related to herbicide exposure, as long as there is proof
of such direct causation. See Combee v. Brown, 34 F.3d 1039,
1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet.
App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir.
Dec. 15, 2000). In order to establish direct service
connection for a disorder, there must be (1) medical evidence
of the current disability; (2) medical, or in certain
circumstances, lay evidence of the in-service incurrence of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability. See Gutierrez v. Principi, 19 Vet.
App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247,
253 (1999)).
The veteran's October 2006 Notice of Disagreement reflects
his contention that his claimed disorders are the result of
in-service exposure to Agent Orange.
Although the Board concedes that the veteran was exposed to
Agent Orange during service, service connection for
folliculitis, diagnosed in November 2005, is not warranted on
a presumptive basis because this condition is not listed
among the diseases recognized as being due to exposure to
herbicides under 38 C.F.R. § 3.307(a)(6) and § 3.309(e).
The Board has considered the veteran's claim on a direct
basis. In this regard, it is noted that his service medical
records are silent with respect to complaints or treatment
referable to a skin disorder.
A November 2005 report of VA outpatient treatment includes an
assessment of folliculitis.
In light of this record, the Board concludes that the
preponderance of the evidence is against granting service
connection for folliculitis on a direct basis. It is
significant that the competent evidence of record reflects
that the veteran initially sought treatment for skin
complaints in November 2005, approximately 34 years after
discharge from service. In this regard, it is noted that the
United States Court of Appeals for the Federal Circuit has
determined that a significant lapse in time between service
and post-service medical treatment may be considered as part
of the analysis of a service connection claim. Maxson v.
Gober, 230 F.3d 1330 (Fed. Cir. 2000). The multi-decade gap
between service separation (1971) and evidence of skin
disorder (November 2005) weighs against the claim. As such,
the probative evidence is against the claim based on
continuity of symptomatology. See Maxson, (lengthy period of
absence of medical complaints for condition can be considered
as a factor in resolving claim).
Similarly, the competent medical evidence of record provides
evidence against a finding of a nexus between the veteran's
folliculitis and his period of active service. See Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran
seeking disability benefits must establish . . . the
existence of a disability [and] a connection between the
veteran's service and the disability . . ."). Specifically,
the veteran began treatment for skin complaints over 30 years
after service.
To fulfill the burden of proof for service connection, the
medical evidence must demonstrate that the current disability
was at least as likely as not (a 50 percent probability)
caused by, or a result of the claimed in-service injury or
disease. Unfortunately, no competent medical evidence was
submitted to demonstrate whether it is at least as likely as
not that the veteran's folliculitis was caused by his
military service.
In addition, the Board finds that the remaining claims for
service connection for chloracne, enlarged prostate, pain in
the arms, hands, and feet, and a dental disorder must also be
denied because the competent medical evidence of record, to
include the veteran's service and VA treatment reports, is
silent with respect to a diagnosis of these disorders.
With respect to the claim for service connection for pain in
the arms, hands, and feet, the Board notes that, although VA
outpatient treatment reports reflect that the veteran
complained of pain in the feet and ankles in November 2005,
these records are silent with respect to a diagnosis in
connection with these complaints. In this regard, it is
important for the veteran to understand that pain alone,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability
for which service connection may be granted. Sanchez-Benitez
v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in
part, and vacated and remanded in part sub nom. Sanchez-
Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).
Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. See Degmetich v. Brown, 104
F. 3d 1328 (1997) (holding that VA's and the Court's
interpretation of sections 1110 and 1131 of the statute as
requiring the existence of a present disability for VA
compensation purposes cannot be considered arbitrary and
therefore the decision based on that interpretation must be
affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir.
1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In the
absence of evidence showing current findings of chloracne,
enlarged prostate, a disorder manifested by pain in the arms,
hands, and feet, or a dental disorder, service connection
cannot be granted. 38 C.F.R. § 3.304(f).
Although the veteran contends that his claimed disorders are
the result of his period of active duty service, where the
determinative issue involves causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is possible or plausible is required. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not
meet this burden by merely presenting his opinion because he
is not a medical health professional and his opinion does not
constitute competent medical authority. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
In reaching the decision with respect to these service
connection claims, the Board considered the doctrine of
reasonable doubt, however, as the preponderance of the
evidence is against the veteran's claims, the doctrine is not
for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Unemployability Determination
Total disability will be considered to exist when any
impairment of mind or body is present that is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. See 38 C.F.R. § 3.340
(2008). Total disability ratings for compensation may be
assigned where the schedular rating is less than total and
the disabled person is unable to secure or follow a
substantially gainful occupation as a result of service-
connected disabilities, provided that, if there is only one
such disability, the disability shall be ratable at 60
percent or more, and if there are two or more disabilities,
there shall be at least one disability ratable at 40 percent
or more, and sufficient additional disability to bring the
combined rating to 70 percent or more. Disabilities
resulting from common etiology or a single accident and
disabilities affecting a single body system will be
considered one disability. See 38 C.F.R. § 4.16 (2007). If
the schedular rating is less than 100 percent, the issue of
unemployability must be determined without regard to the
advancing age of the veteran. See 38 C.F.R. §§ 3.341(a),
4.19 (2008). Factors to be considered are the veteran's
education, employment history, and vocational attainment.
See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).
The veteran has one service-connected disability, namely
degenerative disc disease of the lumbar spine rated as 10
percent disabling. Therefore, he does not meet the schedular
criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a)(2)
(2008). The Board must consider the provisions of 38 C.F.R.
§ 4.16(b), however, which provides for referral of cases for
extraschedular consideration if a veteran is unemployable by
reason of service-connected disability, but does not meet the
schedular requirements for consideration under 38 C.F.R.
§ 4.16(a) (2008).
For a veteran to prevail on a claim for a total compensation
rating based on individual unemployability on an
extraschedular basis, it is necessary that the record reflect
some factor which places the case in a different category
than other veterans with equal rating of disability. The
question is whether the veteran is capable of performing the
physical and mental acts required by employment, not whether
the veteran can find employment. This is so because a
disability rating in itself is recognition that the
impairment makes it difficult to obtain or keep employment.
See Van Hoose v. Brown, 4 Vet. App. 361 (1993).
VA outpatient treatment records include a November 2005
notation that the veteran is employed as a real estate
developer and his March 2006 report of VA spine examination
includes the opinion that the severity of his low back
condition is mild and does not affect his activities of daily
living or employment.
As the Court has stated, the record must reflect some factor
that takes a particular case outside the norm in order for a
claim for individual unemployability benefits to prevail.
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact
that a veteran is unemployed or has difficulty obtaining
employment is not enough. Id. The question is whether he is
capable of performing the physical and mental acts required
by employment because of his service-connected disabilities,
not whether he can find employment.
The Board must consider the effects of the veteran's service-
connected disability in the context of his employment and
educational background. See Fluharty v. Derwinski, 2 Vet.
App. 409, 412-13 (1992). In Beaty v. Brown, 6 Vet. App. 532,
537 (1994), the Court indicated the Board cannot deny the
veteran's claim for a TDIU without producing evidence, as
distinguished by mere conjecture, that the veteran can
perform work. In this case, as mentioned, the veteran is
employed in the field of real estate development.
Accordingly, the weight of the evidence is against his claim
for a TDIU under both 38 C.F.R. § 4.16(a) and (b).
The veteran does not meet the threshold minimum percentage
criteria of 38 C.F.R. § 4.16(a) and the evidence does not
otherwise demonstrate an inability to secure or follow a
substantially gainful occupation due to his service-connected
disability to warrant application of 38 C.F.R. § 4.16(b) for
extra-schedular consideration.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not applicable and the
appeal must be denied. See 38 U.S.C.A. § 5107(b) (West
2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001);
Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Entitlement to service connection for a skin condition, to
include chloracne, on the back, stomach, neck, face, and head
is denied.
Entitlement to service connection for enlarged prostate is
denied.
Entitlement to service connection for pain in the arms,
hands, and feet is denied.
Entitlement to service connection for a dental disorder,
claimed as upper jaw and teeth moving, is denied.
Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU)
is denied.
____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs